eDJ Contributor: Greg Buckles
Posts by Greg Buckles
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- May 15th
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First BP Charges-Not the Crime But the Cover-up Again
The DOJ filed the first criminal indictment relating to the BP Horizon oil spill. It had nothing to do with the actual spill, but was actual criminal charges over an eDiscovery cover up. When something really bad happens, it is human nature to want it to just go away. Former BP engineer Kurt Mix seems to have fallen for the same temptation to try and make the evidence disappear as such well known offenders as Authur Andersen, President Nixon and Rupert Murdoch. Reportedly, Mr. Mix wiped approximately 200 relevant text messages from him smart phone after being notified that his ESI was scheduled for collection. His purported attempt to destroy key evidence in a federal investigation has elevated his role from witness to potential felon facing up to 20 years in jail. So far, the justice department has limited their wrath to Mr. Mix, but Mesa Airlines was found liable for a similar attempted destruction of ESI in In Re Hawaiian Airlines, Inc., Debtor. Hawaiian Airlines, Inc., Plaintiff, vs. Mesa Air Group, Inc., Defendant Case No. 03-00817, Chapter 11, Adv. Pro. No. 06-90026, Re: Docket No. 373 United States Bankruptcy Court For The District Of Hawaii 2007 Bankr. Lexis 3679. I hope that this case raises awareness of the importance of documented preservation protocol, custodian communications, collection technology and compliance efforts. You want to be in a position to demonstrate that the eDiscovery team clearly communicated the external and internal consequences of non-compliance while making reasonable quality assurance efforts. “But your honor, we sent the executive the exact same preservation email every quarter for every case we have. Those notices are six pages of legalese that cover every contingency and ESI source. It’s not our fault that he panicked when we told him we were coming for his iPhone.” Let’s see how far that argument gets you.
posted at 10:20am on May 15th
- April 25th
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Vendors – A Dying Breed? Thoughts from IPRO Innovations
I always enjoy speaking at the IPRO Innovations conferences. They are a good mix of IPRO channel partners and corporate/firm customers, which makes for an excellent market sampling without the crazy crowds or sales intensity of Legal Tech. The IPRO team knows how to create a fun, relaxing atmosphere with enough real content to keep attendees engaged. You may have noticed my deliberate use of the slightly pejorative term “vendors” in my headline. I normally prefer ‘service providers’ to call out the ‘service’ and expertise that I hope is part of every eDiscovery project. ‘Vendor’ has always reminded me of a bulk commodity seller, think of Walmart selling eDiscovery.
posted at 11:35am on Apr 25th
- April 16th
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Kleen Products vs Da Silva Moore: Measurement vs Method
I have read more eDiscovery caselaw and commentary on these two matters in the last month than I ever wanted to. Although the issues around Technology Assisted Review (TAR) are important, it appears that the fervor and hype is being driven primarily by a wide variety of parties who are attempting to capitalize on the matters. Call me naïve, but it astounds me that any eDiscovery consultant or provider participating in an active case would publicize hearing transcripts, create press releases or otherwise put their own interests ahead of their clients. In Da Silva Moore the parties demonstrated laudable cooperation and agreement prior to the first hearing. They agreed to a relatively transparent protocol to tackle a massive collection. All of that has broken down and now there appears to be what could be a concerted effort to discredit magistrate judge Peck and force a recusal. Wow. Would this promising case have turned so acrimonious without the heavy publicity and marketing budgets of TAR providers? Possibly.
posted at 12:21pm on Apr 16th
- April 9th
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Mobile Discovery – Are You Ready For It?
A good friend shared an interesting story over the weekend about how the Michigan State Police routinely collect forensic snapshots of mobile phones during traffic stops. Apparently the American Civil Liberties Association (ACLU) is investigating the MSP’s use of the CelleBrite UFED kit during minor traffic stops without a warrant. At first, this seems outside the arena of civil electronic discovery. However, the story headline claims that the CelleBrite UFED only takes 2 minutes to image a mobile phone. The fact that they are being used by a state patrol officer during a traffic stop certainly backs up this time frame, but I could not find any performance information on the CelleBrite site. I see the new generation of mobile forensic technologies breaking down corporate ‘unduly burdensome’ arguments that have managed to exclude these devices from the discovery scope of many/most cases. After all, a plaintiff can now point to this article and ask, “Why can’t you use a similar device to preserve all custodian phones during your initial interviews?” Widespread use by non-geeks on roadside traffic stops certainly makes that a tough argument to fight.
posted at 2:00pm on Apr 9th
- March 27th
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Is Linear Review Dead?
Last week I was a panelist at the 2012 Masters Series event in Houston and enjoyed the lively and frank discussions about purchasing trends, privacy issues and more that continued into the social gathering afterward. As you might expect, predictive coding and the latest Da Silva filing were a hot topic, especially amongst providers of managed review. One remark by Jim Wagner, CEO of DiscoverReady, resonated with me and I told him that I was going to steal it for a blog. To paraphrase, “The market sees linear review as disorganized review.” He was right on target. Linear review has become synonymous with plowing through millions of randomized email/documents in the least efficient or effective manner. I ask you, “In the last 5 years, have you reviewed collections that had not been culled, searched, prioritized, deduplicated, email threaded or otherwise optimized for review batching?”
posted at 9:00am on Mar 27th
- March 20th
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Defining the eDiscovery Platform – Autodesk Interview
One of the bright points of designing the new eDJ Matrix has been our analyst sessions over what functionality is required for software and services to qualify for our market categories. It may sound geeky to you, but I have grumbled over ‘waves’ and ‘squares’ that were real apple-orange comparisons too many times. I want to get this right in our next big release. The ‘eDiscovery Platform’ was a prominent theme at LTNY 2012, but what do providers mean when they call their software a ‘platform’. They want to give buyers the impression that they cover the entire eDiscovery lifecycle, generally by showing the EDRM diagram covered by their software logo. As nice as that sounds, no one covers document creation through trial presentation in one program, NO ONE. But a more realistic corporate eDiscovery platform seems to be attainable. We spoke with the litigation and compliance team at Autodesk about their selection of Symantec’s Clearwell software.
posted at 11:43am on Mar 20th
- March 7th
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Tech Take Aways in Judge Peck’s Da Silva Opinion
The value promise of ‘black box’ predictive coding or ‘Easy Button’ review gets marketing departments all excited. So excited that eDJ was inundated with copies of the hearing transcript and opinion of Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012) along with their interpretations on how this changed the ground rules of eDiscovery. Marketing departments can spin a mountain out of a mole hill. In his final order, Judge Peck pushed back, “To correct the many blogs about this case, initiated by a press release from plaintiffs’ vendor – the Court did not order the parties to use predictive coding. The parties had agreed to defendants’ use of it, but had disputes over the scope and implementation, which the Court ruled on, thus accepting the use of computer-assisted review in this lawsuit.” Check out Mikki Tomlinson’s interviews with Judge Peck or Conor Crowley’s excellent legal summary for more practical interpretations. The arguments over how you know when your predictive training are ‘good enough’ are worth dissecting. eDJ has been researching the methods of technology assisted review, so I thought it worth extracting some of these key points. Remember that even the vendor experts in this case are representing their technology. Preliminary raw hearing transcripts rarely released to the public and I wonder if the parties are as happy as their vendors about all the publicity. This is a nice glimpse into the fray before the dust has settled on technology assisted review.
posted at 8:00am on Mar 7th
- February 29th
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Buckles LegalTech Micro Briefs – It’s a Wrap
Wrapping up my quick takeaways, I want to say that I really enjoyed the upbeat attitude at LTNY 2012. It was a great show for us and the follow up demos, proposals and new development work has kept us hopping. So here are the last of my briefs, with apologies to all of the providers who did not manage to get time with us or who could not deliver a memorable message to pass on.
kCura – The latest release (version 7.3) may feel a bit retro to any of us who remember having to install 20+ applications to every Discovery Cracker workstation in order to TIFF collections. As it was explained to eDJ, the new Relativity Native Imaging feature is optional, only requires 16 applications for full support and is intended to improve the quality and performance of productions. My own take away is that this is the foundation for processing native collections, which is the next logical step in growing Relativity from a review point solution to a broader eDiscovery platform. We followed up with several major Relativity service partners who confirmed our theory. So the real question is whether this will blunt the meteoric rise of kCura’s channel or simply launch them into broader corporate sales. We have seen other market leaders stumble and lose momentum when making this transition, so kCura should be watched closely over the next year.posted at 3:50pm on Feb 29th
- February 27th
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Buckles LegalTech Micro Briefs – Part 2
Our LegalTech briefing schedule was pretty hectic and I did not want to drag you through all minutia and marketing messages (BIGGER-FASTER-EASIER). So I will try to make this easy to scan and only dive into details when there is real differentiated value.
Symantec/Clearwell – This was our first combined briefing since Symantec acquired Clearwell last July. We had a lot of tough questions for the teams and were pleased to hear how these market leaders are tackling the real challenges around integration of technologies, sales, marketing, services and channel partners. The next major version of Clearwell should provide Enterprise Vault (EV) customers an advanced option to the venerable Discovery Accelerator product for direct search of the EV archives. Bi-directional application and management of legal holds within EV is further down the roadmap, but the Clearwell development team has a good track record for rapid dev cycles. Recent calls to traditional Symantec system integrator channel partners such as GlobaNet revealed multiple Clearwell certified consultants ready to support combined EV-Clearwell-LiveOffice implementations. That is a good sign that Symantec’s channel partners are engaged with these merging information governance-eDiscovery product lines. We look forward to seeing how Clearwell’s huge eDiscovery channel partners transition from volume based hosting sales to selling enterprise licenses and managed services.posted at 9:00am on Feb 27th
- February 13th
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eDiscovery Ethics – Using Our Superpowers Responsibly
Behind our firewall, eDJ has a custom Google search engine based on the top 1,000+ eDiscovery related sites and search terms. I was ‘working’ on this engine over the weekend, as we all know that relevance is a moving target and searches must be optimized to stay relevant. A strange headline from my local paper caught my eye, “Falkenberg: Housing authority’s snoop had eye on others” from the Houston Chronicle. A quick scan revealed that the local county housing authority hired an eDiscovery service provider, Pathway Forensics, to make an open records request for emails, phone records and credit card statements of the local county judge and his staff. That same county judge has questioned recent large salary adjustments and pet projects of the housing authority’s top officials. The short article explains the almost comic plot to get some kind of dirt on an elected official who is trying to mind the public coffers. More relevant to our eDiscovery community is the questionable role that an eDiscovery service provider plays in this comedy of errors.
posted at 8:00am on Feb 13th